Reporter's Statement of the Case 109 C. Cls. of $1.00, both of which latter amounts accrued prior to April 26, 1931. Adding these total sums together, there is an indicated income of $720,035.79. Of the moneys received, amounting to $720,035.79, there was disbursed during this period to decedent, or for his benefit, a total of $712,613.23, of which amount $388,896.19 represent disbursements made for the period from date of original production to April 26, 1931, and $323,717.04 from April 27, 1931 to June 5, 1940. Included in the total disbursements of $323,717.04 for the period from April 27, 1931 to June 5, 1940, was $99,784.46 for United States Treasury bonds purchased on October 13, 1935, the value of said bonds being included in decedent's gross estate as aforesaid. 14. The income flowing from decedent's restricted, allotted lands was credited to his account with the Superintendent of the Five Civilized Tribes and disbursed under the supervision of the Secretary of the Interior. Such income was paid to the Superintendent and deposited with either the Treasurer of the United States or individual banks. The funds placed with the Treasurer of the United States did not bear interest. Funds deposited in banks did bear interest. No individual Indian's funds were directly placed with banks at interest. Funds from the general balance were placed with banks at interest, and when interest was received semiannually the amount received was equitably divided and credited to the accounts of all restricted Indians at the Agency in proportion to their cash balance on the interest bearing dates. With the decline in interest rates over the past decade, almost all of the funds have been withdrawn from banks and are either held by the Treasurer of the United States or used to purchase Government bonds, which, in turn, are held by the Treasurer. The bonds are ordinarily purchased in bulk and interest payments disbursed to the credit of the individual Indians in proportion to the amounts of their money used in the purchase. Decedent had the use of such funds from his account with the Superintendent of the Five Civilized Tribes as were authorized by the Secretary of the Interior to be paid to him, or were expended by the Superintendent of the Five Civilized Tribes, under departmental supervision, in the 1 Reporter's Statement of the Case purchase of property for him. Title to personal property other than clothing, etc., was taken on a restricted bill of sale in the name of the United States for the use and benefit of the decedent. All investment problems concerning the decedent's restricted funds were handled by the Superintendent of the Five Civilized Tribes under departmental supervision, without approval by decedent. 15. Decedent died intestate. He left surviving, his wife, Louisa Watson, and two daughters, Lucille and Juanita, all full-blooded Creek Indians, who inherited his estate in equal shares. 16. All of the restricted funds and bonds belonging to the decedent at the time of his death, except such amounts thereof as were disbursed under departmental supervision for the support and maintenance of the decedent, his wife and two daughters, were then and have been at all times since then retained by the Superintendent of the Five Civilized Tribes, under the supervision of the Secretary of the Interior, in trust for the heirs of said decedent. No actual disbursement direct to the heirs has been made, as the heirs are fully restricted Indians under acts of Congress, but their respective interests in the estate have been credited to their restricted accounts with the Five Civilized Tribes Agency, subject to supervision and disbursement by the Superintendent under the direction of the Secretary of the Interior for the use and benefit of the heirs. 17. There was erroneously included in decedent's gross estate the sum of $3,158, representing the value of 80 acres of purchased land in Okmulgee County, Oklahoma, described as the South Half (S2) of the Southwest Quarter (SW) of Section 25, Township 11 North, Range 12 East. Said land was not owned by decedent at the time of his death but was the property of his wife, Louisa Watson. The defendant, by stipulation signed on its behalf by the Assistant Attorney General, and forming a part of the Agreed Statement of Facts between the parties filed with this court, has agreed that the said sum of $3,158 should be excluded from decedent's gross estate and the tax based thereon refunded to plaintiff. 1 Opinion of the Court the Treasury of the United States for safekeeping), restricted funds on deposit with the Treasurer of the United States to decedent's credit with the Five Tribes Agency, and personal property purchased on a restricted bill of sale, formed no part of and that the value thereof was wrongfully included in said gross estate for Federal estate tax purposes. The decedent had acquired the 160 acres of land referred to above by deeds dated August 28, 1903, as his allotment in severalty of the tribal lands of the Creek Tribe of Indians under the provisions of the Original Creek Agreement between the United States and the Creek Tribe, dated March 8, 1900, ratified by act of Congress on March 1, 1901 (31 Stat. 861), and by the Creek Nation on May 25, 1901, as amended by the Supplemental Creek Agreement ratified by act of Congress on June 30, 1902 (32 Stat. 500). The allotment of the 160 acres to Field was a part of the plan first initiated by the Government by section 16 of the Act of Congress of March 3, 1893, (27 Stat. 612, 645), looking toward the extinguishment of separate national or tribal governments and the fee simple title held by the several Tribes to lands within the limits of the country occupied by the Cherokee, Creek, Choctaw, Chickasaw, and Seminole Nations, either by cession of such lands or some part thereof to the United States, or by the allotment and division of the same in severalty among the Indians. Under the provisions of the Original and Supplemental Creek Agreements and the acts of Congress ratifying the same, the lands to be allotted in severalty were not to be alienable by the allottee or his heirs for five years, except with the approval of the Secretary of the Interior, and 40 acres of such land, selected by him as his homestead were to be nontaxable and inalienable for 21 years. The deeds to Punskee Field for his 160 acres, one covering 40 acres selected as his homestead, the other covering the remainder of his allotment, contained appropriate reference to such provisions. The Act of April 26, 1906 (34 Stat. 137), extended the period of time during which no full-blood Creek should have the power to alienate, sell, dispose of, or encumber in any manner any of the lands allotted to him for twenty-five years after passage and approval of the Act, or Opinion of the Court 109 C. Cls. to April 26, 1931, unless sooner removed by act of Congress. This extension of the restriction upon allotted Indian lands was coupled with a proviso that "all lands upon which restrictions are removed shall be subject to taxation, and the other lands shall be exempt from taxation as long as the title remains in the original allottee." Plaintiff says that decedent's 160 acres of allotted land, and the direct income therefrom in the form of cash, Government bonds and the house and lot purchased from restricted funds, are in the same category so far as taxation is concerned; that the land and the direct income therefrom are exempt from the Federal estate tax within the meaning and intent of the early treaties between the United States and the Creek Tribe, and within the meaning and intent of the subsequent agreements and acts of Congress. Plaintiff says, further, that the Act of May 10, 1928 (45 Stat. 495, 496), by necessary implication confirmed the right to exemption from taxation of decedent's allotment until April 26, 1956, and exemption of the direct income therefrom accruing prior to April 26, 1931, to the extent owned by decedent at the time of death in the form of cash, Government bonds and real estate. This Act extended for an additional period of twentyfive years commencing on April 26, 1931, the restrictions against alienation or encumbrance of the lands allotted to members of the Five Civilized Tribes enrolled as of onehalf or more Indian blood, and provided that all minerals, including oil and gas, produced on or after April 26, 1931, from restricted allotted lands should be subject to all State and Federal taxes of every kind and character. Section 4 of the Act of May 10, 1928, provides in part: That on and after April 26, 1931, the allotted, inherited, and devised restricted lands of each Indian of the Five Civilized Tribes in excess of one hundred and sixty acres shall be subject to taxation by the State of Oklahoma under and in accordance with the laws of that State, and in all respects as unrestricted and other lands: Provided, That the Indian owner of restricted land, if an adult and not legally incompetent, shall select from his restricted land a tract or tracts, not exceeding in the aggregate one hundred and sixty |